In this case Elmer Davis, the petitioner, contends that his petition for writ of the habeas corpus should be granted.

This case has been in the litigation for nearly seven years and Elmer Davis, a 35, now 35, I believe he was about 29 when this case started, is in the state present at Riley on death row.

We say we are -- I believe the state would even admit this that this case stands or falls with this confession.

What I mean by that?

That the only evidence that could possibly could link Davis with this murder is the confession, that's the only thing in this case.

Now if you have notice on the record page 110, that he was arrested by the Charlotte police on September the 21, 1959.

They went over there and arrested him.

They brought him back to Charlotte and in his presence they made out that arrest sheet.

Don't let him use the telephone, don't let him call anybody, and hold for Hucks and Fesperman RE - Foy Bell Cooper, that's the remedy.

So he was arrested right there in Belmont in the police station.

Justice Potter Stewart: He was a -- he had escaped from the prison, didn't he?

Mr. Charles V. Bell: Yes, he had -- he escaped from Haywood County prison camp.

Justice Potter Stewart: And he -- where he was under a sentence and where he still had some 15 years to serve.

Mr. Charles V. Bell: Yes, Your Honor.

Justice Potter Stewart: So there's no question about that – no question for propriety of the locking him -- locking him up, keeping him locked up for the (Voice Overlap)

Mr. Charles V. Bell: Well they say that --

Justice Potter Stewart: Continue -- and deserve that present sentence where -- from which he'd escape.

Mr. Charles V. Bell: Well what we contend in this case that the Charlotte Police Department went to Belmont and the record where arrest sheet solely indicates it and arrested him in Belmont, North Carolina which is another county and brought him back into Gaston for the crime or killing and murdering the white lady, Mrs. Foy Bell Cooper.

Then -- and we say that this -- the arrest sheet and be -- our points in this case that he was denied, one, he was denied counsel and number two that all of the facts and circumstances point unerringly that this is of course confession that it wasn't voluntarily given by Davis.

And if you -- the careful perusal of the fact presented by this record in this case would indicate that it was coerced that they used force and that would -- it was involuntarily obtained.

It's admitted Davis is an illiterate man who couldn't read and write.

When they brought him back to Charlotte and still no place I mean placing him in the county jail, they put him in the police lockup.

He was held in solitary confinement and held incommunicado for 16 days.

Justice Potter Stewart: Well, that could happen to anybody who has escaped from prison, isn't it?

Mr. Charles V. Bell: No sir.

Justice Potter Stewart: He was under -- he was under a long prison sentence, what?

Mr. Charles V. Bell: By --

Justice Potter Stewart: -- 15 to 20 years and when he was recaptured I suppose it's – would he be surprised at least which is rather the normal thing you -- he's returned to prison and maybe in solitary confinement.

That could ha -- that happens everyday to people who were apprehended after they have escaped from prison, doesn't it?

Mr. Charles V. Bell: No sir.

Justice Potter Stewart: That's not --

Mr. Charles V. Bell: Does not --

Justice Potter Stewart: Well what does --

Mr. Charles V. Bell: Well he --

Justice Potter Stewart: What's the difference?

Mr. Charles V. Bell: What's the difference -- the difference is Your Honor, when a man escapes from prison he violates the law there.

He violates the law in the county in which the prison is located.

Justice Byron R. White: And when he's apprehended he is returned for confinement.

Mr. Charles V. Bell: Then he is returned to prison.

Justice Byron R. White: To confinement.

Mr. Charles V. Bell: That's right.

But instead of that -- that it be done -- be in this case, the Charlotte Police Department went into another county and arrested him for this murder which the pol -- the ‘arrest sheet' indicates and held him in an overnight jail for 16 days.

We say and contend that the Charlotte overnight jail isn't an extension of the prison system of North Carolina that he was held as a primary suspect arrested and held incommunicado in an overnight jail for 16 days.

And it's admitted --

Justice William J. Brennan: Well, Mr. Bell he escaped from a prison camp, was that it?

Mr. Charles V. Bell: Yes sir.

Justice William J. Brennan: And ordinarily on -- being recaptured where would they return him, to the prison camp?

Mr. Charles V. Bell: We would return --

Justice William J. Brennan: Yes, in the prison camp?

Mr. Charles V. Bell: Yes sir.

Justice William J. Brennan: Oh, I see.

Mr. Charles V. Bell: They -- we return him to the prison camp.

Justice William J. Brennan: And your point is instead of doing that they took him to a police station or police county jail, was that in Charlotte?

Mr. Charles V. Bell: Yes – police --

Justice William J. Brennan: That's where they kept him -- you say interrogated for 16 days?

Mr. Charles V. Bell: Yes sir.

Justice William J. Brennan: But not in connection with his escape but only in connection with his alleged murders, is that it?

Mr. Charles V. Bell: Yes sir.

Justice Byron R. White: They said -- did they communicate with the prison authorities?

Mr. Charles V. Bell: Sir?

Justice Byron R. White: Did they communicate with the --

Mr. Charles V. Bell: Yes and I understand it's in the record that Captain McCall after having gone over there and having gotten in and have them arrested him and largely and in this lockup did get permission from the Director of Prisons to investigate this crime.

Justice Byron R. White: Well to -- to hold them in their custody for a while, isn't it?

Mr. Charles V. Bell: Yes.

Justice Byron R. White: Where is this overnight lockup --

Mr. Charles V. Bell: The overnight --

Justice Byron R. White: In relation -- in relation to the county jail that you spoke of just a moment ago (Voice Overlap) this prisoners are kept except for overnight.

Mr. Charles V. Bell: The county jail is right across the street.

It's within -- one street separates it and we have it in the records here that -- it's in the record that one officer testifying that he had never known and he's about to retire any place where it could be held under these circumstances for such a protracted period of time.

Chief Justice Earl Warren: In that lockup?

Mr. Charles V. Bell: In this lockup.

And he also testified that he locked him in, held for such a protracted period of time that they put him in the county jail that whenever they want to use him or interrogate him or for some other purpose they transfer him back to the overnight jail.

Justice William J. Brennan: What's the lockup?

Just to keep him in the cell within a police station is that it?

Mr. Charles V. Bell: Yes sir.

It's a pretty large place because it has to accommodate all of the prisoners awaiting trial in the city courts.

Justice John M. Harlan: Is it in the police station Mr. Bell?

Mr. Charles V. Bell: Sir?

Justice John M. Harlan: Is it in the police station?

Mr. Charles V. Bell: Yes sir, it's in the police station.

It's a police overnight lockup jail.

Justice John M. Harlan: Yes.

People who were arrested are taken there and then they appear in court the next morning, is that it?

Mr. Charles V. Bell: Yes sir.

Justice John M. Harlan: The -- and where is the county jail?

Mr. Charles V. Bell: The county jail is right across the street.

Justice John M. Harlan: In a building all by itself or in a –

Mr. Charles V. Bell: Yes sir.

Justice John M. Harlan: in a county courthouse or --

Mr. Charles V. Bell: It's in the county courthouse and I believe it's on the fourth floor.

So when Elmer Davis was brought back to the jail, he was held for 16 days and he was interrogated by three shifts of policemen.

Captain McCall testified that he put his entire force of 29 men to investigate this case.

However, the record only the clo -- discloses it that about seven men interrogated him.

Chief Justice Earl Warren: Can you tell us something about they extent of the interrogation.

Mr. Charles V. Bell: Davis contends that this dispute of -- Mr. Chief Justice that he contends that he was interrogated around the clock.

But they -- they don't -- they dispute that.

They say they only talked to him maybe seven or eight times.

And they contend that they didn't talk to him about his crimes that they were trying to breakdown some alibis and that in itself trying to breakdown some alibis, that in itself would show to the Court that they were continuously questioning him about this crime.

They took him to Canton in North Carolina and it's in the record.

Captain McCall testified that he agreed with the other police to take him to a Canton in North Carolina breaking down the alibis and made and forced, took him out of the jail with leg cuffs and handcuffs.

And after they've got to Canton, he was handcuffed with that -- to another officer walked 19 miles down the railroad right away for 19 -- that's what their -- Mr. Fesperman said.

That is 19 miles from Canton to Asheville, but from one of the outskirts to the other Canton and Asheville would only take up about 14 miles.

But I think this Court could have judicial notice that that's punishment, that's cruel and barbarous punishment.

Chief Justice Earl Warren: What was the reason for walking him down the road in fact for that --?

Mr. Charles V. Bell: Well, they claimed that they were trying to breakdown some alibis that he had told them.

That he had -- what had happened to him after he escaped from the Haywood County Serving Jail and they wanted to check this advocacy if it was true or untrue.

Chief Justice Earl Warren: And when was that with relation to the time he was --

Mr. Charles V. Bell: That was during the time that he had -- he had consistently denied that he have anything and to do with this murder and that was therefore they got the confession.

Chief Justice Earl Warren: Was that -- was that in the last two or three days or was it before that?

Mr. Charles V. Bell: I think it was about four or five days before the confession was obtained.

Chief Justice Earl Warren: Was that -- was that before the time they said that they had first asked him about the murder?

Mr. Charles V. Bell: I think it was Your Honor.

Chief Justice Earl Warren: Direct -- substantially that would?

Mr. Charles V. Bell: Yes sir.

Justice Potter Stewart: Well he had stolen some things, hadn't he and just walked down the railroad track to check his stories, the the route he had taken after he had escaped from prison and the circumstances under which he had stolen these things off the close lines?

Mr. Charles V. Bell: Well that's what -- that's what the validity --

Justice Potter Stewart: Well isn't that true?

Isn't that --

Mr. Charles V. Bell: No sir, I've --

Justice Potter Stewart: – comparing the side.

Mr. Charles V. Bell: What happened happens.

Here's what I actually think happened in this case.

I mean what your interpret Mr. Justice.

They -- when they brought Elmer they -- goes back from Gaston County into Mecklenburg.

Captain McCall had already divulged the plaintiff by which he would make this man confess.

He knew that he couldn't get a bill of indictment that he would have to be released and so he -- this was a planned thing.

This was a means of punishing Davis breaking down his spirit and cause him to confess.

Then this was a -- this was a device of punishment to pull a confession out of Davis.

Justice Abe Fortas: Well McCall -- Mr. McCall satisfied that he didn't mention the murder case to him until Friday afternoon, the 3rd.

The arrest was September 26, or September 21.

Captain McCall testified that the murder was not mentioned to Mr. Davis until October 3rd, and the confession was signed October 6.

Is there anything contradictory to that in the record?

Mr. Charles V. Bell: Well, Mr. Justice Fortas, I could -- I would have to reject that because I think --

Justice Abe Fortas: I'm asking whether there's anything in the record that --

Mr. Charles V. Bell: I think the record on page 110; the ‘arrest sheet' would contradict that because the ‘arrest sheet' was made out in his presence.

Chief Justice Earl Warren: No, just -- just repeat your last sentence, I just --

Mr. Charles V. Bell: It goes -- it said the problem of that arrest sheet RE-Foy Belle Cooper.

Justice Abe Fortas: RE, what is it?

RE -- the record.

Chief Justice Earl Warren: I still don't -- I still don't get it.

It said RE, what?

Mr. Charles V. Bell: RE-Foy Bell Cooper who was the murdered lady.

Chief Justice Earl Warren: Oh, when he was arrested?

Mr. Charles V. Bell: Yes sir.

Chief Justice Earl Warren: Oh, yes.

Justice Abe Fortas: Is there any evidence as to when that entry was made --

Mr. Charles V. Bell: That interim was --

Justice Abe Fortas: -- was made for Mrs. Cooper?

Mr. Charles V. Bell: Yes sir.

Justice Abe Fortas: There is evidence on that.

Mr. Charles V. Bell: Yes, it was made -- as soon as -- it immediately upon his being brought in the police department.

Justice Abe Fortas: I see.

Mr. Charles V. Bell: The same day and unusual thing about this record on cross-examination, each -- there were three officers who had brought him in from Gaston County and all three of them denied that they knew anything about the contents of the ‘arrest sheet' and during the trial of the case, after all three officers denied anything about any knowledge of the contents of the ‘arrest sheet' then Captain McCall on prompt cross-examination himself admitted.

And I think that's on the record at page -- Your Honors if you will notice, if it please the Court if you will notice record page 8 and 9.

Now this was the testimony that was elicited from Captain McCall and cross-examination.

He is the man who is in-charged of this whole investigation and here's what he says.

“I don't know if it's impossible that I could have ordered this boy to be held without privilege of communicating with his parents.”

Now, he's the man in-charge.

He's the man who directs his officers what to do.

His friends and relatives are held without privilege of using the telephone or without privilege of talking to anybody.

And may it please the Court I think the word “anybody” to mean lawyers, relatives, friends, or anybody who -- or everybody he might possibly contact to give him some type of assistance.

I don't know whether I told the jury or not that I did not do this.

Yes, I care.

No, I did not want him to talk to anybody.

That's the captain of the [Inaudible]

Justice William J. Brennan: He gave any reason, did he?

He followed with the --

Mr. Charles V. Bell: Yes, he has followed with reason that he -- yes, Mr. Bell I know that a prisoner in the State Penal Division can see his own people.

Let me see.

Justice William O. Douglas: It seemed to be correct.

Mr. Charles V. Bell: Yes, and he said he was grade prisoner and he wasn't entitled to see anybody and that before he would be allowed to see anybody he would want to get a permission from the Director of Prisons.

Justice William J. Brennan: I suppose your point is that that might be alright and at least that's not what it is because they returned him from the prison from which he escaped.

Mr. Charles V. Bell: Yes sir.

Justice William J. Brennan: But that when they brought him in solely to interrogate him that they couldn't do that.

Mr. Charles V. Bell: Yes sir.

That be -- that was a critical stage in this investigation and that he shouldn't have been denied counsel and it was part of the devise to ring coerced confession from him by holding him in -- holding him in solitary confinement for 16 days.

Justice Potter Stewart: Mr. Bell, going back to this document which is reproduced on page 110 of the record, I don't quite understand the top one -- the top one shows that he was arrested 11:00 PM on September 21st, 1959.

The arresting officers were Homberg, Guilon and Porter, describes them and it's there that says “Hold for Hucks & Fesperman RE - Mrs. Cooper.

Escapee from Haywood County still has 15 years to parole.

Do not allow anyone to see Davis or allow him to use telephone and then going down right below the middle of the page, there seems to be a duplication of the same document, but with other -- I mean the same form with other information in it.

There it says facts of the arrest did kill and slay one Foy Belle Cooper on September 20th in Elmwood Cemetery, was that all made out at the same time or these were two different documents --

Mr. Charles V. Bell: Now, the bottom part -- the first -- the top portion of this ‘arrest sheet' --

Justice Potter Stewart: Yes.

Mr. Charles V. Bell: -- was completed the day he was brought to Charlotte.

Justice Potter Stewart: Yes.

Mr. Charles V. Bell: And the bottom part of it was completed after the preliminary hearing.

Justice Potter Stewart: Well, there seem to be the same form, you shall see --

Mr. Charles V. Bell: The only thing something was added there as to the disposition made in the preliminary hearing.

Then there that he was charged with murder rape of Foy Bell Cooper.

Justice Abe Fortas: So that the bottom half is October 7th, is that it?

Justice Potter Stewart: No, it's dated September 21st same way.

Mr. Charles V. Bell: The bottom half and --

Justice Potter Stewart: Yes, right down at the bottom to the right.

Mr. Justice Fortas points out; it's stated October 7th, 1959.

Mr. Charles V. Bell: Yes, October 7th, 1959.

Justice Potter Stewart: And that was filled in this -- and this -- and this bottom half was filled in after a preliminary hearing, is that it?

Mr. Charles V. Bell: Possibly the same day or the next day.

Justice Potter Stewart: That he has a different age for the man.

He's age 29 at the top of the page, he's age 32 on the second half of the page.

Mr. Charles V. Bell: And that could have been typographical error.

Justice Potter Stewart: The age is three years and two weeks.

Mr. Charles V. Bell: Well, that we -- they -- I mean the circumstances under which he was held, I'm surprise that on the basis there could possibly be living to be.

He has been on death row seven years, approximately seven years and in connection with this preliminary hearing that he had no -- he had no council even then.

No lawyer represented him at the preliminary hearing that they made arrangements themselves on the waver without counsel.

Justice Potter Stewart: He plead not guilty, did he?

Mr. Charles V. Bell: Yes sir.

Chief Justice Earl Warren: Is there anything in the record to indicate that the officers told him of his rights during his three weeks.

Mr. Charles V. Bell: It's undisputed Mr. Chief Justice that when they obtained the purported overall confession that they did not tell him in any event.

They didn't advise him of his Right to Counsel, any privilege that the Constitution would be -- make available to him.

Chief Justice Earl Warren: Is there any --

Mr. Charles V. Bell: But --

Chief Justice Earl Warren: Oh, go on.

Mr. Charles V. Bell: But in order to legalize this thing when they wrote it down which Davis couldn't read, he didn't know what they were writing, when they wrote it down then they're ready to transcribe it.

Then they advised him of his constitution rights.

He had no advice when he made the oral statement.

Chief Justice Earl Warren: There's no -- there's nothing in the record to indicate that during these three weeks that he was in there that he was advised of his rights, nothing in it.

Mr. Charles V. Bell: Yes sir.

Chief Justice Earl Warren: Not until -- not until the written statement?

Mr. Charles V. Bell: Not -- not until the written statement.

Justice Potter Stewart: What do you mean by his rights?

That -- that's something that hasn't been --

Mr. Charles V. Bell: Right to remain silent, right to have counsel --

Justice Potter Stewart: Right to have counsel?

Where -- what do you mean in the jail at all times?

Mr. Charles V. Bell: I go right to talk to somebody or you're allowed here if you wanted to.

Justice Potter Stewart: Did he actually object?

Mr. Charles V. Bell: It's not -- they say he didn't Your Honor.

But after in this case Your Honor and the circumstances of under which this man was being held that it was in cumber that he -- I mean that he had reached the point, that legal guidance was an absolute necessity.

I believe too -- that he couldn't forfeit his rights due to his ignorance and not knowing what he had avail.

Well, I -- I don't think he -- I think that he should have had a lawyer instead.

Justice John M. Harlan: Is there other evidence against this man prior to judgment (Voice Overlap)

Mr. Charles V. Bell: The only thing that they offered, they -- they put on testimony that he -- some distance away from the cemetery where this murder was committed that he had been in that vicinity and possibly had stolen a pair of shoes from someone.

Justice John M. Harlan: Would you mind repeating that --

Mr. Charles V. Bell: They did offer testimony that he had been in that vicinity sometime when – in close proximity when to which -- to when -- when the murder was committed and has stolen a pair of shoes from somebody who was asleep.

But he -- he testified that this man that he took the shoes from was some distance away from the cemetery.

May it please the Court, I think that all the circumstances in this case were careful perusal of the facts would show that this man had volunteered until the minute that -- that this was a conceived plan to ring confession out of this man.

Justice Potter Stewart: It occurred immediately after the policemen gave prayer, isn't it?

Mr. Charles V. Bell: Yes.

They claimed that one man testified and that's the disad -- that's the great disadvantage about confessions.

And the police, all of the police testified against one man and one day they had this preacher there and he testified that he talked to him and that he said he had been treated alright.

And it would elicited on cross examination from this minister that he is what -- he had testified in many cases of this kind.

He's always at hand there when the police needs him and there's a funny thing, he never showed up until he signed the confession and he testifies in many cases of this kind and that was elicited from him on cross examination.

He is what you call as handy Uncle Tom.

Justice Potter Stewart: Handy Uncle Tom?

Mr. Charles V. Bell: Yes.

Chief Justice Earl Warren: How did he -- how did he happen to come to see the defendant?

Mr. Charles V. Bell: Well, he never would say that.

He just claims he just happened to be there.

He's always -- Mr. Chief Justice, happens to be when he has given the police department assistance.

He happens to always be there when they need him.

And they never -- they didn't need him in this case until they had a written confession from Elmer Davis.

It seems to me that if the police department wanted to do right about it, they would have headed there before he signs that paper and had him talk to him and he could have told exactly what happened.

Chief Justice Earl Warren: What -- what do you have to say about the prayer that the -- that the deputy sheriff made for him.

What was that incident?

Mr. Charles V. Bell: Well, the Deputy Sheriff said that I think he testified that he talked to Elmer and that he had made a prayer -- said a prayer -- say to ask him had it been for him. He solely stated he saw a bible in his hand and then Elmer told him he didn't know how to pray and so -- then he made a prayer for him.

Chief Justice Earl Warren: How they happened to get the bible?

Mr. Charles V. Bell: That never came out in the evidence.

Chief Justice Earl Warren: Did --

Mr. Charles V. Bell: And I think it's a customary thing around the jail, they give people bibles.

Chief Justice Earl Warren: I see.

Justice John M. Harlan: Are you familiar with this case of --

Mr. Charles V. Bell: Yes sir.

Justice John M. Harlan: [Inaudible] it came up here on direct review phrase in our certiorari.

Is that it?

Mr. Charles V. Bell: Your Honor this case I think it had as much action as any case I've ever known.

We -- we tried the case in [Inaudible] called Mecklenburg County.

We lost it, the death sentence was imposed.

We had it reviewed by the Supreme Court of North Carolina and they affirmed it.

Then we filed a petition for cert to this Court and it was denied.

Then we went into the Eastern District Court of North Carolina with a petition for writ of habeas corpus and it was denied in which in the petition we requested a hearing.

Then it went to the Fourth Circuit.

Justice Potter Stewart: And there was a hearing?

Mr. Charles V. Bell: It was not.

Justice Potter Stewart: You're not.

It's the first time actually.

It's not --

Mr. Charles V. Bell: Then it went to Fourth Circuit and it was argued before the three-judge court then they requested reargument en banc and they reversed it and sent it back to the United States District Court for our hearing.

Then that the whole case was tried over again before the United States District Judge and he denied the petition.

Then it went back on appeal to the Fourth Circuit and argued before a three-judge court again.

And before any decision was passed, was imposed or rendered, they wrote to Attorney General's office and Mr. Levin's and me and asked “Would we consent for the record to be reviewed en banc for a disposition and they disposed of it on a three-judge, 3-2 decision.

Then since you asked that question, may I state this.

That that was to my -- to my mind I've been thinking about and I think I don't' understand it.

The original three judges who heard the case, two of them dissented, Judge Sobeloff and Judge Bell.

And the thing I can't understand is why they couldn't vote for -- vote to grant this petition instead of requesting that it be decided en banc on the record because they would -- the dissenting judges it --

Justice Potter Stewart: Your argument was only to those three judges?

Mr. Charles V. Bell: That's right.

Justice Potter Stewart: There was no argument to the Court en banc?

Mr. Charles V. Bell: No sir.

Justice Potter Stewart: The Court en banc is to review the record but only --

Mr. Charles V. Bell: View the record --

Justice Potter Stewart: And of the three judges who heard the case, the United States Court of Appeals, two of them votes on your favor?

Mr. Charles V. Bell: Yes sir.

Justice John M. Harlan: Well, at some [Inaudible] closed case or want to en banc it.

Chief Justice Earl Warren: Mr. Bullock.

Argument of James F. Bullock

Mr. James F. Bullock: Mr. Chief Justice, Associate Justices.

Mr. Bell was been with this case all the way through and I got in on the very end of it, several members of our office having handled it previously.

The question before this Court is not a new question.

However the ascertainment of the answer by placing all the facts of this case within the applicable law was enunciated by this Court, it's difficult as always, we realized that.

If I may add a personal note, the case is difficult for me there are two reasons.

First, I do not approve of capital punishment.

Second, it's the first case I have ever appeared in which the death sentence had been imposed and I was on this side of defense that I -- I've always been a defense counsel previously.

Now, the State of North Carolina and the Attorney General's Office is not vindictive, not blood thirsty.

It has been our practice as Mr. Bell well knows during the years that I have been there that we concede error very frequently in criminal cases in both the State and the federal courts when there's been violation of due process or error of law.

Yet, I have a duty to the public of North Carolina and I have a profound respect for the law and we feel that when all of the circumstances of this case have been considered, that the decisions of the lower courts will be affirmed finding that there had not -- had not been a violation of due process.

Mr. Bell in response to your question, we did some of the history of this case.

It has been a long case.

It's been in litigation ever since 1959.

The voluntariness of the confession was considered by the trial judge in the Superior Court and resolved against the defendant.

The North Carolina Supreme Court resolved a question against the defendant.

This Court denied certiorari.

It was Judge Butler the first time in the District Court in that circumstance, I was not within, found the facts against the defendant.

It went to the Fourth Circuit and they felt that a plenary hearing should be held and a plenary was held in the United States District Court of the eastern district which was a trial de novo.

In fact, every witness involved so far as this confession is concerned in material was heard by the District Court plus additional three witnesses who were not heard in the Superior Court.

And I might say that the State allowed Mr. Bell to lead his client and his witnesses anyway they wanted to go because we had no hesitation in letting the full facts come out in that court.

Now, we had not planned to argue the facts of this case in detail because we think that the findings of the District Court, the findings of the Fourth Circuit sufficiently deal with the facts and then prior to law thereto and it would be somewhat of a wasted time for us to review them again here.

I would like to respond to what Mr. Bell said he felt had happened that this was a planned thing from the beginning when the police first took Davis into custody.

It must be remembered that he was taken into custody in Belmont the night or the day after the murder and I see no way that the police could have planned anything against Davis because they didn't know who had committed the murder.

Now, on Davis' person when he was arrested was a pocketbook, identification cards from Bishel Hayes whom he had robbed the day of the murder within a few yards of the cemetery where the murder occurred.

Now that is why the Charlotte police went to Belmont and brought him back.

The Belmont police contacted the Charlotte police as they always do when they pick up an escaped convict and let them know he has been apprehended.

In addition to that he had on this person various other articles which he had stolen.

He had broken into homes and stolen ladies pants.

He had stolen these items off on clotheslines on his trip down from the mountains coming in to Charlotte.

He would --

Justice William J. Brennan: When did he escape?

Mr. James F. Bullock: Sir?

Justice William J. Brennan: When did he escape?

Mr. James F. Bullock: I have not been able to pinpoint from the record the exact time of the escape this case, but it's indicated it was some days prior to his apprehension and --

Justice William J. Brennan: [Inaudible]

Mr. James F. Bullock: I think so, yes sir.

I don't believe he ever said the exact day.

It shows that he – it indicates that it was several days prior to his apprehension and the murder in Charlotte because he had come down by train and he said by bus and other means from up in the mountains.

And this route from Campton to Ashville is where he told the police very freely, he admitted this in the Superior Court, admitted it in the District Court that he had broken into these homes.

That he had committed this robbery although he said it was on Saturday instead of Sunday the day of murder.

He pretty admitted all of these.

He said he had always freely omitted his crimes.

The statement is in the record which he had committed, but the Charlotte police had ample reason to investigate this suspect, this escaped convict of all these other crimes and a crime which was committed in Charlotte, a robbery of a -- from the person there.

Chief Justice Earl Warren: He ad -- he admitted those --

Mr. James F. Bullock: He admitted though, yes sir.

Chief Justice Earl Warren: Freely?

Mr. James F. Bullock: Freely, he admitted that under oath in the Superior Court, he admitted that under oath in the District Court.

Chief Justice Earl Warren: I was speaking about when he was arrested, did he admit then or --

Mr. James F. Bullock: Oh, yes sir.

Yes sir, he admitted on -- during this period of time, the 16 days.

I don't know exactly what day he first admitted thought but that was what they were interrogating him about during this time.

The Cooper murder was not mentioned to him until October the 3rd I believe.

He was first brought to Charlotte on September the 21st, the night.

Justice John M. Harlan: Was there anything found on his person connecting him directly with [Inaudible]

Mr. James F. Bullock: No sir, there was not, nothing on his person that connected him with it because the items of her personal property had been left in the cemetery and Davis later showed where he had hidden those articles in the bushes, pocketbook, glasses, things of those.

Justice William J. Brennan: And yet by the time they got him to Charlotte according to his arrest record, he was being held only in connection with the murder, wasn't it?

Mr. James F. Bullock: This notation which is on here indicates that sometime he was held in connection with this case for questioning there.

Justice William J. Brennan: But I mean there's no reference here that was being held on Charlotte for any of these evidences.

Mr. James F. Bullock: No sir.

There's no charges remained at that time because there's no actual formal charge made in this case against Davis until after his confession and then a warrant was issued and he was -- had a preliminary hearing a way of the preliminary hearing.

Justice Potter Stewart: Well it's certainly a reference to the fact that he was an escaped prisoner.

Mr. James F. Bullock: Yes sir.

Justice Potter Stewart: With 15 years more to serve.

Mr. James F. Bullock: es sir that -- that's right there and they did clear this with the prison officials in order to hold him while they were investigating all of these other crimes; the articles which he had on this person --

Justice Abe Fortas: And had the --

Mr. James F. Bullock: -- and the Cooper case in the event if there is any connection there.

Justice Abe Fortas: Is that the -- your explanation of this exhibit on page 110, the arrest record where it does say hold for Hucks & Fesperman RE - Mrs. Cooper.

Mr. James F. Bullock: Yes, Your Honor not on my explanation, but the record does not indicate when that notation was put on there that you will note from the reading of the record that the arresting officers or the least the ones who went to Belmont and brought him back, said they said they did not put that on there.

They had never had any knowledge on this until the time of the trial.

The two officers who were assigned to the Cooper case to investigate the Cooper case said they never put it on there because they were not the arresting officers of course.

They had no occasion to -- they had no knowledge of this notation until the time of the trial in the Superior Court.

Now, Captain McCall testified that he may have had it put on there sometime, but apparently it was sometime after he was put in jail and not the day of this -- original ‘arrest sheet' was made out.

Justice Abe Fortas: Well, it does follow that alleging that I've just read, it's followed by alleging escapee from Haywood County still that's 15 years full.

Mr. James F. Bullock: Yes sir.

Justice Abe Fortas: Do you know whether it's customary to fill out the form on the facts of the arrest when a person is arrested?

Mr. James F. Bullock: I didn't know what that -- do not know what the procedure is in the arrest -- and the police department shall --

Chief Justice Earl Warren: Well, the form would indicate that that is the purpose of it wouldn't it?

Mr. James F. Bullock: Yes sir.

Chief Justice Earl Warren: The form says facts of the arrest and right under it “Hold for Hucks & Fesperman RE - Mrs. Cooper.”

Mr. James F. Bullock: Yes sir.

The -- the notation -- we can't deny the fact that the notation raises serious questions.

However, all of the evidence that the Superior Court and the District Court indicates that this notation was completely disregarded by all of the police officers, in fact, they had no knowledge of it other than Captain McCall who said he may have had to put on there -- it would be explanation concerning to being a C grade prisoner.

Now, the reason -- the evidence shows that it was disregarded immediately after David was put into jail, I believe the next day the record indicates, he requested the jailer, I believe, to contact his sister by telephone.

They looked in the directory and could not find her address.

It must be remembered that his sister had not seen Davis for 10 to 15 years, she testified.

So apparently, he did not know exactly who she was so they were having some difficulty in locating in the directory.

But Mr. Hucks --

Chief Justice Earl Warren: Does she live in the city?

Mr. James F. Bullock: She lives in Charlotte yes sir, near the cemetery where this murder occurred.

In fact Davis' home was near the cemetery where this murder occurred and I believe it was in evidence that one of his parents has killed the other parent while Davis was a youngster.

And the police knew him and his background for that reason for more investigation with that and his other crimes.

But Mr. Hucks, a detective, when Davis says time after time, he treated him very nice that he was assigned to the case never mistreated him in any form of fashion.

Mr. Hucks went out and made a search and found the sister and told him that Davis wanted to see her.

And she said, I think she had seven or ten kids, something like, who were sick.

She said she couldn't come then because of the children.

Chief Justice Earl Warren: Mr. -- when the fact that he did that?

Mr. James F. Bullock: That was a day or two after Davis had been arrested.

Chief Justice Earl Warren: After the arrest.

Mr. James F. Bullock: Yes sir and after he was brought back to Belmont.

And then a few days later Mr. Porter asked Davis whether there was any one he wanted to contact and he mentioned that his sister had not come and he wanted to see her.

He started to located the sister and found that Mr. Hucks had already had and did not proceed any further.

But Mr. Hucks and Mr. Garner who lived next door to the Davis home -- old Davis home out there went over and talked to the sister a second time and she still did not come.

Now, all the officers say that she'd never once came to the City Jail to see Davis.

She said that she did go over to the County Jail to see him at one time, but it's significant that she didn't even bother to go to his trial.

It is further significant that neither Mr. Bell nor Mr. Avins or her attorneys nor the sister nor Davis considered this testimony germane enough to have at the trial or at any time until four years later at the plenary hearing in the District Court.

And we just think that the police testimony on all of these circumstances as the District Court believed and the Circuit Court believed, was more worthy than I believe than the sister's.

Justice John M. Harlan: Is there -- is there a conflict in her testimony at one stage -- in another stage with respect to having or having made an effort to see Davis in light of her testimony?

Mr. James F. Bullock: It seemed to -- but she only testified and that was in the District Court.

There were some conflict as to when she was trying to see him there.

It was not entirely clear on that.

Chief Justice Earl Warren: What -- what --

Mr. James F. Bullock: Excuse me --

Chief Justice Earl Warren: What is your explanation of the -- of the statement on the arrest warrant, do not allow anyone to see Davis or allow him to use telephone?

Mr. James F. Bullock: The only explanation we have as what Captain McCall himself testified to there that he was doing that in order to -- or get -- that was the instruction he had received from the prison department.

When they -- he called about having him and asked permission to keep him up there.

And that -- that was a preference.

But apparently none of the police officers had been instructed by Captain McCall to argue anything about this notation.

Now, we say that all the evidence clearly indicates that we -- we can't deny it was there and the fact if it had been carried out and the purpose of it was to hold him this way, the police would have been silly to kept this ‘arrest sheet' there for the attorneys to see.

They could easily destroyed it and fix that one. But they say there never was any denial that Davis seen anyone he wants -- he only requested to see one person and that was his sister.

They made two attempts, three counting the telephone trying to find -- to find her and she would not come.

Justice William J. Brennan: Did the police testify that they have advised him that he might see someone, that he might see a lawyer or that he might make a telephone call that he didn't have to talk and if they did what did they advise him and when?

Mr. James F. Bullock: The record indicates that at least two or three of the police officers did advise of him of those general rights.

Justice William J. Brennan: When?

Mr. James F. Bullock: Previously, one of them previously to the confession and then at the time of the confession they specifically advised him at that time they --

Justice William J. Brennan: In that brief, that he testified there's a written confession --

Mr. James F. Bullock: The oral confession.

Justice William J. Brennan: The oral confession.

Mr. James F. Bullock: That's oral confession and then again at the time of the written confession Captain McCall told him that -- advised him of his rights that if he wrote it and signed it, it could be used against him so forth and so on.

Justice William J. Brennan: And what -- in relation to the date of arrest which I gather September 21st, what date was that?

Mr. James F. Bullock: This would have been on October the 6th, I believe.

Justice William J. Brennan: That's after about 15 days.

Mr. James F. Bullock: Yes sir.

Justice Potter Stewart: The written confession Mr. Bullock appears at page 360, through the middle of the page on 362 of the record Davis is illiterate, is he?

Mr. James F. Bullock: Sir?

Justice Potter Stewart: Is Davis illiterate?

Can he read or write?

Mr. James F. Bullock: He can read Your Honor.

The District Court found that he had completed a third of fourth grade.

There was evidence that he had a testament which he had been reading in the jail which was given to him by people who visited the jail regularly to distribute these testaments and there is evidence in the record that he read this bible all during his trial in the Superior Court.

Justice Potter Stewart: And what does the evidence show as to this written confession which as I say appears on page 360 to 362 of the record.

Internally here it says tantamount, Captain McCall has dictated the statement in the presence of Detective Hucks and Fesperman and Gardner, Davis and detective Lieutenant Sykes and I wondered, so it was dictated apparently by Captain McCall?

Mr. James F. Bullock: Yes, I understand that it was --

Justice Potter Stewart: Was it read by Davis or was it read to Davis?

Mr. James F. Bullock: It was read to Davis as I understand it.

Justice Potter Stewart: He says that here -- I've not been promised any reward or hope of reward.

I have not been mistreated by any of the detectives or any other person who was talking with me.

I've been told that I do not have to make a statement.

And if I do make a statement or answer any questions pertaining to this murder it can be used against me or for me in the Court of Law.

And at the end he says “I've made the statement freely and voluntarily.

I'm glad it is over because I have been going through a big strain a little earlier.

In closing, I want to say this.

I've known in my own mind that you people -- I suppose it means what you people were holding before that all of the time I've been lying in jail.

It has been worrying me and I knew that sooner or later I would have to tell you about it.

Now it's -- I -- to me it's of some importance how much of this Davis himself knew or subscribed to or was it just written by somebody else.

Mr. James F. Bullock: The statement as I understand it Your Honor was dictated by Captain McCall and was taken down by a police reporter and with -- in the presence of several other police officers, I believe three or four often that time who witness Davis signature -- witnessed, in fact it was read to him and his signature to it.

Justice John M. Harlan: What was the other thing?

Mr. James F. Bullock: Yes sir.

It was read to him.

Chief Justice Earl Warren: Mr. Bullock, would you just tell us something abut this 19-mile walk that they took when he – it was alleged that he was handcuffed to an officer?

Mr. James F. Bullock: Yes sir I will.

This was I believe about two weeks perhaps after he had -- his arrest.

Detective Hucks who was assigned, chief detective assigned to this took Davis to his home that morning for breakfast and fed him a hot breakfast and then they went out to Canton by an automobile.

Now, they kept leg chains on him in the car, but they took the leg chains off of him for the walk and the officer handcuffed Davis to his wrist.

And they walked side by side for the 14 miles he testified from outskirts to outskirts approximately 14 miles along this way trying to identify the homes into which Davis had broken to secure these items which he had in his possession at the time of his arrest.

He wanted -- he was willing to go, the record indicates that.

Now he wanted to clear up this aspect of it and he was willing to go.

Now, we -- we don't think that Davis suffered on that trip.

If you --

Chief Justice Earl Warren: Did they find the homes?

Mr. James F. Bullock: No sir, he was unable to point out anything to him whatsoever.

He had told him about these various places and described them but they were never able to find any home or any place that he would identify as a middle of the tracks.

Chief Justice Earl Warren: Was this walk along that -- was along the highway?

Mr. James F. Bullock: No sir, it was on the railroad line.

He -- he had traveled the railroad coming down.

Chief Justice Earl Warren: Is there -- is there a highway along the railroad?

Mr. James F. Bullock: I'm not familiar with it.

Apparently, not because the other officer went by car on that to meet him at the other end where they would come into by rail where they were walking.

Chief Justice Earl Warren: Pretty hard walking on the railroads -- railroad right of way for 14 and 19 miles, isn't it?

Mr. James F. Bullock: It is not a casual stroll, I agree Your Honor but if you would -- if you knew the officer involved who was short and rather portly built compared to Davis, the officer must have suffered a great deal more.

In fact he testified that he did.

That it was quite a chore for him to get -- to survive as he would say.

Justice Hugo L. Black: Did Davis admit that that was the walk he had taken by himself?

Mr. James F. Bullock: Yes sir.

He admitted this.

Justice Hugo L. Black: You've followed the same course that he walked –

Mr. James F. Bullock: Yes sir, he admitted that he had come this way himself.

Justice Hugo L. Black: But he'd walked to full distance.

Mr. James F. Bullock: Yes sir.

So he had been this way before walking and breaking into homes and stealing and it didn't bother then so I don't think this later won't bother him at all.

Justice John M. Harlan: [Inaudible] he was taken back to the original place with his compliance for [Inaudible]

Mr. James F. Bullock: No sir, he was apprehended in Belmont which is some miles out from Charlotte.

Justice John M. Harlan: Do you know what county?

Mr. James F. Bullock: He's in adjoining counties few miles from Charlotte and then when the Charlotte police learned that the Belmont police had him in custody they went over to get him to Charlotte to investigate these crimes which had happened in Charlotte.

One, which had been reported to the robbery of Hayes; Hayes came up and reported, he had reported he had been robbed and they had the person's billfold and the identification cards and all on this person when he was arrested.

So there's no doubt about that.

They were investigating this and had Davis placed on Sunday at the day of the rape murder within a very few feet of the grave cemetery in which it occurred.

In fact that he had robbed Hayes there.

Chief Justice Earl Warren: Well that led him -- led him to --

Mr. James F. Bullock: -- suspect --

Chief Justice Earl Warren: -- a suspicion at least that he had killed the lady.

Mr. James F. Bullock: Yes sir, there was the --

Chief Justice Earl Warren: Now would you --

Mr. James F. Bullock: -- suspicion at --

Chief Justice Earl Warren: Would you please tell us why they didn't mention the murder to him for over two weeks after he was in custody while they were interrogating him all the time?

Mr. James F. Bullock: The officers testified that they were investigating his backgrounds and these other crimes which he had told them about.

He had told them of several crimes which he had committed since his escape.

Chief Justice Earl Warren: They were more interested in that than they were to murder do you mean?

Mr. James F. Bullock: Well, I -- what I understood from their testimony was the fact that if in investigating these they could place Davis away from Charlotte.

He would be exonerated of the crime in Charlotte.

If as he later testified he was some place else breaking into homes, committing another crime, and certainly it was to his interest that the Charlotte police investigate these matters and attempt to find out what had occurred and that was the explanation.

In fact, they were still investigating the Cooper murder and beside that they had not been able to tie in with Davis in any respect until they asked him about it and on October the 3rd, again on the 5th, and then on the 6th when a confession occurred.

Justice Hugo L. Black: When did he later say he later say -- he -- what was his alibi?

You said alibi?

Why did he later the claim he was at the time the murder occurred?

Mr. James F. Bullock: He claimed that he was in Belmont at his auntie's home.

But the auntie didn't appear at the trial and testified that he was up there.

I'd like to say one word about Nathaniel Cross.

Chief Justice Earl Warren: About what?

Mr. James F. Bullock: Mr. Dr. Nathaniel Cross, a colored pastor who testified at a District Court.

They called him Uncle Tom.

I have never seen a more dignified gentleman in my life than Dr. Cross.

He's a -- has a doctor's degree in religion.

He's editor of the newspaper, radio commentator, highly educated, very rounded person and has fought, for many years, for the rights of the underprivileged people particularly their constitutional rights as the record would show in Charlotte and surrounding areas.

He testified to this fact.

Now, why did he come to see Davis? Because Davis was standing and Davis himself was former member of his church in Belmont, he knew him and when he finally made the connection by reading the newspapers that this was the Davis that had been in his church or his family, he went down to visit him and went in and had an hours of conference with him at which time Davis admitted to him that he'd been well treated, no mistreatment by the police officers that he signed a confession voluntarily.

It's all in the record.

Now, we don't like to talk about people whose character is known but Davis here, I have a summary that I think this points it out, 29 years old, low average intelligence according to the District Court, frankly he made an outstanding appearance in the District Court on the witness stand.

He was very calm and he's not half as nervous as I am here today, but -- and gave very intelligent answers.

Now --

Justice Potter Stewart: This Davis?

Mr. James F. Bullock: This is Davis.

Justice Potter Stewart: In the federal district court.

Mr. James F. Bullock: In the federal district court.

It's the only time I had ever seen him --

Justice Potter Stewart: Yes.

Mr. James F. Bullock: Made a very favorable impression on me as a witness.

This is the first time I was connected with the case.

I went back then and got the record in the Superior Court which this Court had the written -- that same record that appeared certiorari, not once in 41 pages of testimony in the Superior Court did Davis say anything about any mistreatment, not once.

But when you get into the District Court four years later, that's his theme song, police beating and brutality relay after relay of questioning late in to night, all night long.

He is a phenomenon.

He has total recall of details four years later.

He has every component that this Court has said was a violation of the constitutional rights four years later, but they don't have at the original trial, they don't mention them.

He's a liar by his own omission in the District Court by identifying an officer whom he claimed, said he was going framed -- framed, something to that effect.

In the District Court he identified three different persons and then finally ended up by saying that he had lied about Detective Sykes in the Superior Court and you will find inconsistency after inconsistency between the two records, his testimony which to me is nothing more than his testimony in the District Court as complete publication, a good story dreamed up, fixed up, to get a reversal, to save himself from this penalty which has been imposed upon him.

Chief Justice Earl Warren: Of course we do find some discrepancies in the prosecution's case too, don't we?

Mr. James F. Bullock: Yes, I --

Chief Justice Earl Warren: Which is the records here and the handwriting of the Captain of police which says do not allow this man to see anyone, do not allow him to telephone and that is -- he explained the way has been of no consequence.

Mr. James F. Bullock: We do not deny the fact that it was there but we -- we do say that all of the evidence -- a great deal of evidence indicates that that was completely disregarded so far as this prisoner was concerned.

Chief Justice Earl Warren: Yes, I know.

I say that they -- they have to contradict their --

Mr. James F. Bullock: Yes, yes it would.

Chief Justice Earl Warren: -- their own handwriting in their own record in order to say that, do they not?

Mr. James F. Bullock: Yes, they do.

Chief Justice Earl Warren: Would you mind telling us how they denied -- that the -- the officers admit interrogating him?

Mr. James F. Bullock: I don't believe there's any omission that they ever interrogated him at night.

At that time the detectives only worked until 11 o'clock at night.

Chief Justice Earl Warren: Well, I thought there was something in the record to the effect that they never -- they never interrogated him after 11 o'clock.'

Mr. James F. Bullock: I -- I check back on it.

I thought I had -- I believe I mentioned that in my brief that they had not interrogate him after 11 o'clock in any event but I went back to the record later and I never could find any testimony that he was interrogated at night by the police officers.

The latest that I could find was late in the afternoon four, or five, six, seven o'clock, something to that nature.

What time is it?

Justice Potter Stewart: What's the word fram mean in the North Carolina fram?

Mr. James F. Bullock: I assume that he was talking about the beating among friend, he beat you, I think that's what he's having reference to.

I couldn't what word is that whether he was framed or fram or what but --

Justice Potter Stewart: I wonder.

Mr. James F. Bullock: But after we use the time until I think the connotation is it -- the [Inaudible] in that respect--

Chief Justice Earl Warren: If -- if you had another statement to make in this brief you may make it Mr. Bullock.

Mr. James F. Bullock: I don't believe that we have any other points to make at this time unless the Court has some questions.